24 Oct A Short History of the War Crime of Collective Punishment
Of all the questions I’ve been asked concerning the latest round of violence in the Israel/Palestine situation, the most common is whether Israel’s actions in Gaza amount to the war crime of collective punishment. Because of my role as a Special Advisor to the ICC Prosecutor, it would be inappropriate for me to address that question; there is, of course, an open OTP investigation into the situation in Palestine. But I thought it might be useful to provide readers with a short history of the war crime itself, because there seems to be a general lack of understanding of what it is and how it can be punished.
International Humanitarian Law
The prohibition of collective punishment in IHL dates back to Hague Convention (II) of 1899. Art. 50 of the annexed Hague Regulations provides that “[n]o general penalty, pecuniary or otherwise, can be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.” Art. 33(1) of the Fourth Geneva Convention (GC IV), adopted unanimously by states, contains a similar but more specific prohibition, providing that “[n]o protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.” The ICRC Commentary to GC IV makes clear that the provision is very broad, not limited to judicial penalties, and rules out collective punishment based on the “passive responsibility” of a civilian population:
This does not refer to punishments inflicted under penal law, i.e. sentences pronounced by a court after due process of law, but penalties of any kind inflicted on persons or entire groups of persons, in defiance of the most elementary principles of humanity, for acts that these persons have not committed.
This provision is very clear. If it is compared with Article 50 of the Hague Regulations, it will be noted that that Article could be interpreted as not expressly ruling out the idea that the community might bear at least a passive responsibility (2).
Thus, a great step forward has been taken. Responsibility is personal and it will no longer be possible to inflict penalties on persons Who have themselves not committed the acts complained of.
Except for Common Article 3, which does not prohibit collective punishment, GC IV applies only to international armed conflict. The prohibition on collective punishment nevertheless applies equally in non-international armed conflict. Art. 4 of the Second Additional Protocol (AP II) deems the prohibition a “fundamental guarantee” for “[a]ll persons who do not take a direct part or who have ceased to take part in hostilities,” one that applies “at any time and in any place whatsoever.” AP II is not universally ratified, unlike the Geneva Conventions, but the ICRC considers the rule to apply as a matter of customary international law to non-international as well as international armed conflict (Rule 103). The US, which has not ratified AP II, disagrees with the ICRC concerning some of the rules in the Custom Study, but Rule 103 is not among them. Indeed, the Department of Defense’s 2015 Law of War Manual specifically provides that, in non-international armed conflict, “[c]ollective punishments, whether administered by a court or through administrative measures, are prohibited.”
International Criminal Law
The idea that imposing collective punishment could be criminal under international law dates back to the 1919 Report Submitted to the Preliminary Conference of Versailles by the Commission on Responsibility of the Authors of the [First] War and on Enforcement of Penalties. The report includes “collective penalties” in its list of “violations of the laws and customs of war” that should incur individual criminal responsibility. The indictment at the International Military Tribunal at Nuremberg (IMT) later alleged that “[t]he Germans pursued a systematic policy of inflicting, in all the occupied territories, collective penalties, pecuniary or otherwise, upon the population for acts of individuals for which it could not be regarded as collectively responsible.” The judges, however, made only passing reference to collective punishment in their judgment — likely because Art. 6(b) of the London Charter, the IMT’s enabling statute, did not specifically enumerate it as a war crime.
Echoing the Commission on Responsibility, the International Law Commission included collective punishment in Art. 22 of the 1991 Draft Code of Offences Against the Peace and Security of Mankind, which listed what the Commission deemed to be “exceptionally serious war crimes.” The ILC also made clear in its commentary (pg. 105) that, in its view, the war crime applies in both international and non-international armed conflict. Five years later, the ILC included collective punishment in Art. 18(f) of the 1996 Draft Code of Offences Against the Peace and Security of Mankind, which enumerated war crimes that could be committed in non-international armed conflict.
The International Criminal Tribunal for Rwanda (ICTR), created by the Security Council in 1994, was the first international criminal tribunal to have jurisdiction over the war crime of collective punishment. Art. 4 of the ICTR Statute specified that the tribunal could prosecute collective punishment because it qualifies as a “serious violation of… Additional Protocol II.” No defendant at the ICTR, however, was ever convicted of the war crime.
The same is not true of the Special Court for Sierra Leone (SCSL), created in 2002 by a Security Council-endorsed agreement between Sierra Leone and the UN, which had jurisdiction over the war crime of collective punishment pursuant to Art. 3 of the SCSL Statute. Defendants were convicted of the war crime in both the AFRC case and the RUF case, and in each case the Appeals Chamber affirmed the convictions. By contrast, in the CDF case, the defendants were convicted of the war crime of collective punishment at trial but the Appeals Chamber reversed their convictions, concluding the Trial Chamber’s definition of the crime’s mens rea — that the defendant had “reasonable knowledge” civilians were being collectively punished — was legally erroneous. In the Appeals Chamber’s view (para. 224), collective punishment is a specific intent crime that has two material elements:
(1) “the indiscriminate punishment imposed collectively on persons for omissions or acts for which some or none of them may or may not have been responsible” — actus reus.
(2) “the specific intent of the perpetrator to punish collectively” — mens rea.
According to the Appeals Chamber, it is precisely the specific-intent requirement that distinguishes the war crime of collective punishment from the war crime of intentionally attacking a civilian or other protected person (para. 223):
The Appeals Chamber emphasises that a “punishment” for the purposes of the crime of collective punishments is an indiscriminate punishment imposed collectively on persons for omissions or acts for which some or none of them may or may not have been responsible. As such, a “punishment” is distinct from the targeting of protected persons as objects of attack. The targeting of protected persons as objects of war crimes and crimes against humanity may not necessarily be predicated upon a perceived transgression by such persons and therefore does not constitute collective punishments. Thus, the mens rea element of collective punishments represents the critical difference between this crime and the act of targeting. While targeting takes place on account of who the victims are, or are perceived to be, the crime of collective punishments occurs in response to the acts or omissions of protected persons, whether real or perceived. The targeting of protected persons who are residents of a particular village, for instance, is therefore distinct from the collective punishment of protected persons in a given village who are perceived to have committed a particular act, such as providing rebel forces with shelter.
The RUF case, in which the Trial Chamber applied the Appeals Chamber’s definition, provides a useful illustration of what qualifies as collective punishment. The prosecution alleged in Count 2, the collective-punishment count, that the defendants not only committed “unlawful killings, sexual violence, abductions, forced labour,” but that they did so “to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide sufficient support to the AFRC/RUF.” The Trial Chamber rejected the prosecution’s argument regarding sexual violence, abductions, and forced labour because the necessary intent to punish collectively was absent. But the Trial Chamber convicted the defendants on Count 2 with regard to the unlawful killings, because it concluded that “the killing of the 63 civilians was committed with the aim of indiscriminately punishing civilians perceived to be Kamajors or collaborators” (para. 1492).
Wherefore Art Thou, Rome Statute?
In his report on the SCSL statute, the UN Secretary-General took the position that “‘[i]n recognition of the principle of legality… the international crimes enumerated are crimes considered to have the character of customary international law at the time of the commission of the crime.” There is no reason to question the customary status of the the war crime of collective punishment in light of that statement and the other international-law sources discussed above. As a result, any state whose courts exercise universal jurisdiction over customary war crimes could prosecute the war crime of collective punishment no matter where, by whom, or against whom that punishment was inflicted. To date, however, no such prosecution has taken place.
There is, however, no war crime of collective punishment in the Rome Statute of the International Criminal Court (ICC) . That means the Court cannot prosecute collective punishment even when committed in a situation the OTP is formally investigating. Shane Darcy explains why in his seminal article on the the war crime:
Earlier proposals of the Preparatory Committee for the Establishment of an ICC had specified that collective punishments should be enumerated as a punishable war crime, although the crime was then excluded from the draft statute submitted to the Rome Conference in 1998. Adriaan Bos, one of the chairs of the Preparatory Committee, indicated that the removal of collective punishment from the list of war crimes was proposed by states “involved in annexation or occupation of ‘foreign’ territory.”
To be sure, the war crime of collective punishment could be added to the Rome Statute. The amendment process is, however, difficult and cumbersome — and when an amendment adds a substantive crime to the jurisdiction the Court, the new crime applies only to states parties that choose to ratify the amendment. That said, unless an amendment specifically excludes non-states parties from the Court’s jurisdiction (as is the case for the crime of aggression), the Court does have jurisdiction over nationals of non-states parties who commit the new crime on the territory of a state party that has accepted the amendment. That is at least arguably the case, for example, with regard to the 2017 amendments to the Rome Statute that criminalize the use of biological weapons, fragmenting weapons, and blinding laser weapons in both international and non-international armed conflict. Whether states would be willing to include the war crime of collective punishment in the Rome Statute now, 25 years after its adoption, is an open question. But nothing would prevent a state or group of states from adding such an amendment to the agenda at an upcoming Assembly of States Parties.